Justice Souter’s Counsel NYT Editorial

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Two recent moments have brought to mind Chief Justice John Roberts’s simplistic description of a Supreme Court justice as an umpire who confines himself to calling balls and strikes. The first was the reminder in Detroit on Wednesday night that umpires are highly fallible, and their calls subjective, even when something as important as Armando Galarraga’s nearly perfect game is at stake.

The other was former Justice David Souter’s brilliant demolition of the umpire metaphor in his commencement address at Harvard last week. It is hard to imagine a better preparation for the confirmation hearings of Elena Kagan later this month.

Justice Souter, of course, is too courtly to refer by name to the chief justice or anyone else who believes justices leave their life experiences at the courthouse door and decide every case based on a narrowly historical “fair reading” of the Constitution. But his target was clear. Justices have to understand the “meaning” of the facts presented to them, he said, going far beyond the objective sense on the printed page. . .

Simplicity “devalues our aspirations.”



http://www.nytimes.com/2010/06/05/opinion/05sat3.html?ref=opinion